End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

7.1:101 Model
Rule Comparison

Rule 7.1 of
the Pennsylvania Rules of Professional Conduct parallels MR
7.1(a)-(c) with two exceptions.
Pennsylvania expands subparagraph (b) of the Model Rules by providing examples
of prohibited communications which create unjustified expectations about results
"such as the amount of previous damage awards, the lawyer's record in obtaining
favorable verdicts, or client endorsements..." The purpose of this expansion
is to clarify that the results obtained on behalf of one client without reference
to specific factual and legal circumstances may be misleading as indicators
of the results another client might expect. Additionally, Pennsylvania adds
subparagraph (d) to Rule 7.1.
This subparagraph codifies existing case law by prohibiting subjective, non-measurable,
claims as to the quality of the lawyer's services or his or her credentials.

7.1:102 Model
Code Comparison

DR 2-101 provides
that "[n]o lawyer shall not . . . use . . . any form of public communication
containing a false, fraudulent, misleading statement or claim. . ." With respect
to Rule 7.1(a)-(d),
there is no direct code counterpart.

7.1:210 Prior
Law and the Commercial Speech Doctrine

Similar to most jurisdictions, Pennsylvania previously
banned lawyer advertising in any form until the United States Supreme Court
held that such total bans violated the United States Constitution. See Bates
v. State Bar (1977). The United States Supreme Court, however, also held
that reasonable regulation of attorney advertising is permissible. Id.
Since the Supreme Court's decision, the Pennsylvania Rules of Professional Conduct
have contained provisions restricting and regulating attorney advertising. Portions
of Pennsylvania's prior rules were held to be unconstitutional. See Spencer
v. Honorable Justices of the Supreme Court, (E.D. Pa. 1984), aff'd without op.
(3d. Cir. 1985). The present rules were adopted in 1994. They have not
been the subject of a constitutional challenge.

7.1:220 False
and Misleading Communications

The rule requires that description of a law firm be accurate
and truthful. A law firm may use a trade name to advertise or describe its services,
to avoid being misleading, however, this trade name must be used for all purposes.
Phila. B.A. Op. 94-26 (1994). A law firm may only
designate a lawyer as "of counsel" where there is a close and ongoing relationship
between the lawyer and the firm. Pa. Eth. Op. 89-98 (undated).
Public communications, including letterhead, which refer to non-lawyers such
as interpreters or paralegals must make clear their status as a non-attorney.
Phila. Eth. Op. 92-21 (1992). A Law firm cannot untruthfully
imply that any member of its firm would have any special influence in regard
to a particular matter. Id. The use of a geographic
region to describe a lawyer's practice could misleadingly create a perception
that the lawyer is associated with a municipality unless the advertising contains
a notation that the practice is "a private law office". Phila.
Eth. Op. 95-17 (1995). A lawyer's regular presence in an office in which
he is not qualified to practice could amount to a misleading communication about
the lawyer's services in violation of the rule. Phila. B.A.
Op. 94-16 (1995).

7.1:230 Creating
Unjustifiable Expectations

Client testimonials about the outcome of the case or the
results achieved are prohibited because they can create unjustified expectations
in the client. Pa. Eth. Op. 88-143. Prohibited testimonials
include generalized subjective descriptions such as "a good result". Phila.
Eth. Op. 91-17 (1992). Lawyer advertisements and communications, however,
can contain truthful client testimonials about the nature of the lawyer's work
such as "the lawyer has always returned my phone calls." Id.

7.1:240 Comparison
with Other Lawyers

A lawyer can only make objective, measurable comparisons
to another lawyer. Formerly associated lawyers who are discontinuing their association
must ensure that all communications with clients comply with the requirement
of the Rule. Phila. Eth. Ops. 92-8 (undated), 94-30
(1994). A Lawyer may not use inherently subjective terms such as "experienced",
"expert", "highly qualified" or "competent" to describe his services. See Spencer
v. Honorable Justices of the Supreme Court, 579 F. Supp. 880 (E.D. Pa. 1984),
aff'd. without op., 760 F.2d 261 (3d. Cir. 1985).

7.2:101 Model
Rule Comparison

Rule 7.2 of
the Pennsylvania Rules of Professional Conduct incorporates, with a few minor
changes, the provisions of MR 7.2(a-d).
The Pennsylvania rule, however, provides additional restrictions upon the form
and content of attorney advertising. The complete text of Rule 7.2 is as follows:

Rule 7.2 ADVERTISING

(a) Subject to the requirements of Rule 7.1 a lawyer may
advertise services through public media, such as a telephone directory, legal
directory, newspaper or other periodical, outdoor, radio or television, or through
written communications not within the purview of Rule 7.3.

(b) A copy or recording of an advertisement or written
communication shall be kept for two years after its last dissemination along
with a record of when and where it was used. This record shall include the name
of at least one lawyer responsible for its content.

(c) A lawyer shall not give anything of value to a person
for recommending that lawyer's services, except that a lawyer may pay the reasonable
cost of advertising or written communication permitted by this rule and may
pay the usual charges of a not-for-profit lawyer referral service or other legal
service organization.

(d) No advertisement or public communication shall contain
an endorsement by a celebrity or pulbic figure.

(e) An advertisement or public communication that contains
a paid endorsement shall disclose that the endorser is being paid or otherwise
compensated for his or her appearance or endorsement.

(f) A non-lawyer shall not portray a lawyer or imply that
he or she is a lawyer in any advertisement or public communication; nor shall
an advertisement or public communication portay a fictitious entity as a law
firm, use a fictitious name to refer to lawyers not associated together in a
law firm if that is not the case.

(g) An advertisement or public communication shall not
contain a portrayal of a client by a non-client; the re-enactment of events
or scenes; or, pictures or persons, which are not actual or authentic, without
a disclosure that such a depiction is a dramatization.

(h) Every advertisement that contains information about
the lawyer's fee, shall be subject to the following requirements:

(1) Advertisements that state or indicate that no fee shall
be charged in the absence of recovery shall disclose that the client will be
liable for certain expenses in addition to the ffe, if such is the case.

(2) A lawyer who advertises a specific fee or hourly rate
or range of fees for a particular service shall honor the advertised fee for
at least ninety (90) days; provided that for advertisements in media published
annually, the advertised fee shall be honored for no less than one (1) year
following initial publication unless otherwise stated as part of the advertisement.

(i) All advertisements and written communications shall
disclose the geographic location, by city or town, of the office in which the
lawyer or lawyers who will actually perform the services advertised principally
practice law. If the office or location is outside the city or town, the county
in which the office is located must be disclosed.

(j) A lawyer shall not, directly or indirectly (whether
through an advertising cooperative or otherwise), pay all or any part of the
costs of an advertisement by a lawyer not in the same firm or by any for-profit
entity other than the lawyer's firm, unless the advertisement discloses the
name and principle office address of each lawyer or law firm involved in paying
for the advertisement and, if any lawyer or law firm will receive referrals
from the advertisement, the circumstances under which referrals will be made
and the basis and criteria on which the referral system operates.

(k) A lawyer shall not, directly or indirectly, advertise
that the lawyer or his or her law firm will only accept, or has a practice limited
to, particular types of cases unless the lawyer or his or her law firm handles,
as a principle part of his, her or its practice, all aspects of the cases so
advertised from intake through trial. If a lawyer or law firm advertises for
a particular type of case that the lawyer or law firm ordinarliy does not handle
from intake through trial, that fact must be disclosed. A lawyer or law firm
shall not advertise as a pretext to refer cases obtained from advertising to
other lawyers.

7.2:102 Model
Code Comparison

With regard to Rule
7.2(c), DR 2-103(B) provides
that "[a] lawyer shall not compensate or give anything of value to a person
or organization to recommend or secure his employment . . . except he may pay
the usual and reasonable fees for dues" charged by legal aid and other legal
services organizations. DR 2-101(I)
provides that "[a] lawyer shall not compensate or give any thing of value to
representatives of the press, radio, television, or other communication medium
in anticipation of or in return for professional publicity in a news item."
The Code contains no counterparts to the remaining provisions of Rule
7.2.

Pennsylvania allows lawyers to advertise by various means
except direct contact as prohibited by Rule
7.3. Lawyers are permitted to advertise "1-900" numbers for legal services
provided that any calls are prescreened, free of charge, to determine that the
lawyer is competent to handle the inquiry. Pa. Eth. Op. 90-156
(1991). Targeted direct mail which summarizes a lawyer's recent work
is permissible so long as such communication is not false or misleading and
otherwise complies with the rules. Pa. Eth. Op. 96-33 (1996).
A lawyer is permitted to distribute prepaid calling cards to present and potential
clients provided that the card is restricted in that it can only be used to
make calls to the lawyer. Phila. Eth. Op. 95-10 (1995).
Lawyer is permitted to give present and potential clients a coupon or discount
for future legal services. Phila. Eth. Op. 92-12 (1992).
Flyers distributed outside a court building by a non-profit organization are
not prohibited by the rules, provided that the flyers comply with Rule
7.1 and the flyers are not a subterfuge for the lawyer to obtain clients
in violation of Rule 7.3 and Rule
8.4(a). Phila. Eth. Op. 95-20 (1995).

Rule 7.2(b)
requires that a record of all advertising materials be kept for two years from
the last dissemination to facilitate enforcement of the rules. The Pennsylvania
version of the rule further requires that a particular attorney or attorneys
be designated as responsible for the advertisement.

Subject to the limitations set forth in Rule
7.2(j), a lawyer is allowed to pay for permissible advertising but is otherwise
not permitted to pay another person for channeling professional work. See 1994
Comment to Rule 7.2. Thus, Attorney renting office space from medical-services
provider cannot pay to the medical provider any percentage of the lawyer's fee
relating to referrals by the provider to the lawyer's personal injury practice.
Pa. Eth. Op. 95-106 (1995). The rule restricts even
non-monetary payments, e.g, distribution of prepaid calling cards that allow
unrestricted use of the card violates Rule
7.2(c). Phila. Eth. Op. 95-10 (1995). But, a lawyer
is permitted to advertise that he will prepare a free living will, provided
the client had made a charitable contribution to a designated charity within
the preceding three months. Phila. Eth. Op. 91-34 (1991).

7.3:101 Model
Rule Comparison

Pennsylvania has adopted MR
7.3 with a few variations. Pennsylvania has an additional prohibition against
contacting prospective clients when "the lawyer knows or reasonably should know
that the physical, emotional or mental state of the person is such that the
person could not exercise reasonable judgment in employing a lawyer." Further,
the PA rule does not contain subparagraphs
(c) or (d) of MR 7.3. Subparagraph
(c) requires that the words "Advertising Material" be placed on certain solicitations,
and subparagraph (d) allows lawyers to participate in group legal service plans
which use in-person or telephone contact to solicit memberships from people
who are not known to need legal services in a matter covered by the plan.

7.3:102 Model
Code Comparison

DR 2-104 provided,
with a few exceptions, that "[a] lawyer who has given in-person unsolicited
advice to a layperson that he should obtain counsel or take legal action shall
not accept employment resulting from that advice... ." DR 2-104 was suspended
by Order of the PA Supreme Court, April 26, 1984.

A lawyer practicing with a small firm who also operates
a claims processing business with his wife, a non-lawyer, may not accept and
represent clients he has solicited or who have been referred to him through
the claims processing company, because the company is an "intermediary" for
purposes of Rule 7.3(a). Phila.
B.A. Prof. Guid. Comm., Op. 91-13 (1991).

A law firm may not entertain a doctor and his wife at dinner
in order to obtain personal injury client referrals from the doctor. Such conduct
violates the rules against solicitation of legal business through an intermediary
and giving something of value for recommending a lawyer's services. Pa.
Eth. Op. 91-92 (1991).

When a partner leaves a law firm and clients call asking
to speak with that partner, the law firm must give the ex-partner's new business
address and/or phone number and may also ask the caller if the call relates
to a legal matter and, if so, may propose the firm's assistance to the caller.
However, if the caller resists the invitation of the firm or otherwise makes
it clear that the caller only wants to speak with the ex-partner, continued
persistence by the firm may violate Rule
7.3(b) which prohibits direct solicitation of persons who have displayed
disinclination to deal with the firm and further proscribes communications involving
duress, coercion, or harassment. Phila. B.A. Prof. Guid.
Comm., Op. 94-30 (1994).

A lawyer may offer a class that gives general information
about wills where attendees who wish more individual advice may speak with the
lawyer after class and receive a discount on preparation of a will. The lawyer
must be careful not to engage in soliciting clients in-person and must be sure
that the sponsoring organization does not do so on the lawyer's behalf. Pa.
Eth. Op. 93-42A (1993).

7.3:210 Solicitation
by Non-Profit Public Interest Organization

A lawyer who is also Executive Director of a nonprofit
organization that advocates the rights of a special interest group may contact
members and potential members of the organization in writing to inform them
of his/her professional services, but neither the lawyer nor the organization
is allowed to contact members or potential members of the organization in person
or by telephone because there is no "prior professional relationship." with
the members. Phila. B.A. Prof. Guid. Comm., Op. 96-11 (1996).

A law firm may participate in a telephone information network
and advertise the number of years the various firm partners have been in practice
and the year the firm was established. The ad must state the city or town in
which the lawyers who will perform the services are located and must give their
addresses. If the ad is disseminated in another county, the county in which
the lawyers practice must also be noted. Pa. Eth. Op. 95-8A
(1995).

A lawyer's direct mail solicitation letters must avoid
statements such as "There is no charge for your initial 20-minute consultation"
unless he also indicates that the potential client may be charged attorney's
fees and costs if representation is undertaken. Similarly, the lawyer should
avoid a statement in the letters such as "I would never let you down," as this
may be misleading. Pa. Eth. Op. 91-96 (1991).

7.4:101 Model
Rule Comparison

PA-Rs 7.4(a)(1)
and (2) are substantially similar
to MR 7.4(a) and (b).
However, PA-R 7.4(a)(3) and
(4) are somewhat different.
PA-R 7.4(a)(3) provides that "a lawyer who has been certified by an organization
approved by the Supreme Court of Pennsylvania as a certifying organization in
accordance with subparagraph (b) may advertise the certification during such
time as the certification of the lawyer and the approval of the organization
are both in effect." PA-R 7.4(a)(4) provides "a lawyer may communicate that
the lawyer is certified in a field of practice only when that communication
is not false or misleading and that certification is granted by the Supreme
Court of Pennsylvania." PA-R 7.4 also varies in that it provides a procedure
in subparagraph (b) by which the Supreme Court of Pennsylvania may approve an
organization that certifies lawyers for purposes of subparagraph (a).

7.4:102 Model
Code Comparison

DR 2-105(A)
provides that "A lawyer shall not hold himself out publicly as ... a specialist
. . . except as follows:

"(1) A lawyer admitted to practice before the United States
Patent and Trademark Office may use the designation 'Patents', 'Patent Attorney',
'Patent Lawyer', or 'Registered Patent Attorney' or any combination of those
terms, on his letterhead and office sign. A lawyer engaged in the trademark
practice may use the designation "Trademarks", "Trademark Attorney", or "Trademark
Lawyer", or any combination of those terms, on his letterhead and office sign,
and a lawyer engaged in the admiralty practice may use the designation "Admiralty",
"Proctor in Admiralty", or "Admiralty Lawyer", or any combination of those terms,
on his letterhead and office sign ... ."

(3) A lawyer who is certified as a specialist in a particular
field of law or law practice by [the authority having jurisdiction under state
law over the subject of specialization by lawyers] may hold himself out as such,
but only in accordance with the rules prescribed by that authority."

EC 2-14 states
that "[i]n the absence of state controls to insure the existence of special
competence, a lawyer should not be permitted to hold himself out as a specialist
or as having official recognition as a specialist, other than in the fields
of admiralty, trademark, and patent law where a holding out as a specialist
historically has been permitted."

A lawyer may not send letters to clients of the firms at
which he used to work which compare his expertise in the area of worker's compensation
to those firms, because Rule 7.4
prohibits either the express use of the word "specialist" (with a few exceptions
that do not apply here) or any implication that an attorney is a specialist.
Phila. B.A. Prof. Guid. Comm., Op. 94-5 (1994).

A law practice's use of trade names such as "Med Law Associates"
or "Medical Malpractice Clinic" would violate Rule
7.4 because the term implies a specialty in medical malpractice cases and
also that there is a medical doctor or personnel on staff in the law office.
However, a name such as "Medical Malpractice Associates" would be permissible.
Phila. B.A. Prof. Guid. Comm., Op. 89-21 (1989).

A lawyer may include a statement on letterhead and business
cards such as "NFL Players Association Contract Advisor," provided that the
statement is true. Pa. Eth. Op. 91-19 (1991).

A lawyer who is also a certified public accountant may
indicate on biographical statements that he is both a JD and a CPA provided
that he also indicates that his accounting and legal practices are separate.
The lawyer may use letterhead in his legal practice that includes his name,
a designation such as "attorney at law", the address of his law office, and
a statement that his law practice is "limited to" or "concentrates in" tax,
estate planning, and probate matters. Pa. Eth. Op. 91-50
(undated).

A lawyer may indicate that he is a retired Navy Judge Advocate
by placing "CDR, JAGC, USNR (Ret.)" on his letterhead and business cards. Pa.
Eth. Op. 94-10 (1994).

7.5:101 Model
Rule Comparison

PA-R 7.5 is
substantially similar to MR 7.5,
but PA-R 7.5(a) has an additional
provision which states that "[i]f otherwise lawful a firm may use as, or continue
to include in, its name, the name or names of one or more deceased or retired
members of the firm or of a predecessor firm in a continuing line of succession."

7.5:102 Model
Code Comparison

With regard to Rule
7.5(a), DR 2-102(B) provides
that "[a] lawyer in private practice shall not practice under a trade name,
a name that is misleading as to the identity of the lawyer or lawyers practicing
under such name, or a firm name containing names other than those of one or
more of the lawyers in the firm, except that ... a firm may use as ... its name,
the name or names of one or more decreased [sic] or retired members of the firm
or of a predecessor firm in a continuing line of succession."

With regard to Rule
7.5(b), DR 2-102(D) provides
that "[a] partnership shall not be formed or continued between or among lawyers
licensed in different jurisdictions unless all enumerations of the members and
associates of the firm on its letterhead and in other permissible listings make
clear the jurisdictional limitations on those members and associates of the
firm not licensed to practice in all listed jurisdictions; however, the same
firm name may be used in each jurisdiction."

With regard to Rule
7.5(c), DR 2-102(B) provides
that "[a] lawyer who assumes a judicial, legislative, or public executive or
administrative post or office shall not permit his name to remain in the name
of a law firm ... during any significant period in which he is not actively
and regularly practicing law as a member of the firm... ."

A law practice's use of trade names such as "Med Law Associates"
or "Medical Malpractice Clinic" would violate Rule
7.4 because the term implies a specialty in medical malpractice cases and
also that there is a medical doctor or personnel on staff in the law office.
However, a name such as "Medical Malpractice Associates" would be permissible.
Phila. B.A. Prof. Guid. Comm., Op 89-21 (1989).

A Pennsylvania lawyer hired by a NJ firm as a partner to
handle work in Pennsylvania may use letterhead showing all of the firm members
(partners and associates) provided the jurisdictional limitations of those attorneys
who are not admitted to practice in Pennsylvania are clearly delineated on the
letterhead. Alternately, the lawyer may use letterhead with only the firm name
and the Pennsylvania address without individually listing the other partners
or associates in the firm. Use of letterhead with only the firm name on it,
where the firm name includes partners not admitted in Pennsylvania, does not
require delineation of the jurisdictional limitation of those partners. Phila.
B.A. Prof. Guid. Comm., Op. 92-19 (1992).

A law firm that is affiliated with a firm in England may
state this fact on its letterhead; however, the firm may not list the English
attorneys on the firm's letterhead. Pa. Eth. Op. 91-122 (1991).

A professional corporation may not continue to use a lawyer's
name in the firm name after the lawyer ceases to be a shareholder in the firm,
even though the lawyer continues to be "Of Counsel" to the firm for a period,
because to do so would be misleading in violation of Rule
7.5(d). However, the firm letterhead may indicate the former firm name,
in parentheses, under the new firm name. Phila. B.A. Prof.
Guid. Comm., Op. 88-31 (1988). But see Pa. Eth. Op.
94-179 (1994) (a law firm may continue to practice law under the same
name while one of the named partners is now identified as "Of Counsel" on the
firm's letterhead).

A professional corporation may not include in its firm
name the name of an associate employee who is not a shareholder in the corporation,
because this designation is misleading as it implies that the associate lawyer
has an ownership interest in the professional corporation. Pa.
Eth. Op. 90-171 (undated).